Lay (Migration)

[2023] AATA 3968

Lay (Migration) [2023] AATA 3968 (12 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Winston Pereira Lay

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  2105073

HOME AFFAIRS REFERENCE(S):          BCC2021/471718

MEMBER:Jason Pennell

DATE:12 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

Statement made on 12 July 2023 at 10.06am

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – decision on the papers – not holder of any relevant visas – request for Ministerial Intervention – ‘unique and exceptional circumstances’ – COVID-19 pandemic and the associated lockdowns – unfair and unreasonable result – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 808.211A, 808.211, 808.212, 808.213

CASES
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 March 2021 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 25 March 2021. The applicant’s representative acknowledged at the outset that the applicant does not meet the criteria for the grant of the visa. The purpose of the application is to seek review of the refusal decision by the Tribunal, and then to request intervention by the Minister pursuant to s 351 of the Act. The delegate refused to grant the visa on the basis that the applicant did not meet cl 808.21 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

3. By email dated 8 June 2023, the applicant’s representatives advised that the applicant waived his right to a hearing and consented to a decision being made ‘on the papers’.

4. The applicant was represented in relation to the review by Ms Karyn Anderson of Clothier Anderson Immigration Lawyers.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

SUPPORTING EVIDENCE

6.The applicant is a 24-year-old citizen of Indonesia. He has travelled to and from Australia extensively since the age of two, as the holder of various tourist visas.[1] He last arrived in Australia on 13 January 2020 and has not departed since.[2] Relevantly to this review, the applicant was granted a Student (subclass 500) visa to enable him to complete his secondary schooling in Australia. This visa was valid between 18 December 2013 and 15 March 2017.The applicant was granted a further Student (subclass 500) visa to enable him to study a Bachelor of Business (Professional) at Swinburne University of Technology. He transferred to a Bachelor of Business (Information Systems) at the same institution. This visa was valid from 15 March 2017 until 30 August 2020, at which point the applicant became an unlawful non-citizen.

[1]    Movement records of the applicant dated 12 May 2023, AAT file No 2105073 Doc ID: 11052466.

[2]    ibid.

1. The applicant’s university degree was extended beyond 30 August 2020. The applicant states that he did not lodge a further student visa application before the expiration of his last student visa due the stresses of the COVID 19 pandemic. The applicant remained in Australia. He lodged the present visa application on 25 March 2021 and was granted a Bridging C (subclass 030) visa on 30 March 2021 in association with the application. The applicant completed his degree on 12 July 2021.

2. The applicant lives in Australia with his three siblings, Ms Wendy Lay, 21 years old,[3] Ms Whitney Lay, 19 years old, [4] and Miss Windia Lay, 16 years old,[5] who each hold student visas.[6] The applicant’s mother, Ms Merita Ribeiro Liu, holds a Student Guardian (subclass 590) visa.[7] The applicant’s father remains in East Timor.

   [3]    Ms Wendy Lay’s birth certificate, AAT file No 2105073 Doc ID:11139046.

   [4]    Ms Whitney Lay’s birth certificate, AAT file No 2105073 Doc ID: 11139043.

   [5]    Ms Windia Lay’s birth certificate, AAT file No 2105073 l Doc ID: 11139050.

   [6]    VEVO check of each sibling, AAT file No 2105073 Doc IDs: 11139048; 11139044; 11139051.

   [7]    VEVO check of applicant’s mother, AAT file No 2105073 l Doc ID: 11139041.

3. The applicant provided the following documents in support of his application to the Department:[8]

   [8]    Dept File No: BCC2021471718, Doc ID: ADD2021/1904871, AAT file No 2105073 Doc ID: 8358917.

   ·            Form 852 – Application for a Confirmatory (Residence) visa

   ·            Form 956 – Appointment of Agent

   ·            Copy of the applicant’s emergency passport

   ·            Copy of the applicant’s previous passport

   ·            Copy of the applicant’s birth certificate with translation.

   ·Copy of the Student (subclass 500) visa grant notice of Winston, dated 15 March 2017

   ·Copy of the applicant’s Student (subclass 500) visa grant notice, dated 18 December 2013

   ·            Copy of the applicant’s VEVO check

   ·            Copy of the applicant’s Academic transcript

   ·            Copy of the applicant’s Enrolment statement

   ·            Copy of the applicant’s Student (subclass 500) visa application in draft

   ·            Copy of the applicant’s Genuine temporary entrant statement

   ·            Copy of the passport of Merita Ribeiro Liu, the applicant’s mother

   ·            Copy of the birth certificate of Merita Ribeiro Liu with translation

   ·            Copy of the VEVO check of Merita Ribeiro Liu

   ·            Copy of the passport of Whitney Lay, the applicant’s sister

   ·            Copy of the birth certificate of Whitney Lay with translation

   ·            Copy of the VEVO check of Whitney Lay

   ·            Copy of the passport of Wendy Lay, the applicant’s sister

   ·            Copy of the birth certificate of Wendy Lay with translation,

   ·            Copy of the VEVO check of Wendy Lay, the applicant’s

   ·            Copy of the passport of Windia Lay

   ·            Copy of the birth certificate of Windia Lay with translation

   ·            Copy of the VEVO check of Windia Lay.

10.The applicant provided the following submissions to the Tribunal in support of his review application:

·            Copy of the applicant’s Bachelor of Business (Information Systems)

·Copy of the applicant’s Academic Transcript for his Bachelor of Business (Information Systems)

·            Copy of the applicant’s updated passport issued on 4 November 2021

·            Copy of the applicant’s Statutory declaration dated 5 June 2023

·            Copy of Statement of Angelina Ku, the applicant’s aunt, dated 5 June 2023

·            Bundle of supporting letters from Winston’s family

·            Copy of updated passports of the applicant’s mother and siblings

·            Copy of Angelina Ku’s Australian passport

11.The applicant’s statutory declaration (‘the applicant’s declaration’) reads as follows:[9]

[9]    Applicant’s statutory declaration dated 5 June 2023, AAT file No 2105073 Doc ID: 11139057.

1.I make this statutory declaration in support of my request for Ministerial intervention under section 351 of the Migration Act 1958 (Cth). I am making this request so that I can be granted a Temporary (Graduate) (subclass 485) visa via the Minister.

2.The Department refused to grant me a Confirmatory (subclass 808) visa on 31 March 2021, and I applied to the Administrative Appeals Tribunal for review of that decision on 21 April 2021.

3.My immigration lawyer has explained to me that the reason that my Confirmatory (Residence) (subclass 808) visa was refused was because:

a.I am not a former holder of a former holder of a Norfolk Island immigration temporary, general or unrestricted entry permit or the former permit holder's dependent child; or

b.I do not meet the residence requirement in Norfolk Island, or elsewhere in Australia if you are a dependent and studying.

4.I lodged an application for a Confirmatory (Residence) (subclass 808) visa because I had no other visa options available to me. I understand that I cannot satisfy the criteria for the grant of this visa.

5.I am now asking the Tribunal to make a decision without me appearing before it and to refer my case to the Minister for him to consider exercising his public interest powers under s 351 of the Migration Act 1958 (Cth) to grant me a Temporary Graduate (subclass 485) visa.

6.I was born on 6 August 1998 in Dili, East Timor.

7.I am an Indonesian national.

8.I completed my schooling up to Year 9 at Australia International School in Bali which is now known as Australian Independent School.

9.On 13 November 2013, I applied for a Student (subclass 571) visa to study Years 9 to 12 at Beaconhills College in Melbourne at the Pakenham Campus

10.On 18 December 2013 I was granted my Student (subclass 571) visa and I arrived in Australia on 1 January 2014. My Student (subclass 571) visa was valid until 15 March 2017.

11.I completed Year 12 at Beaconshills College on 12 December 2016. On 22 February 2017 I applied for a further Student (subclass 500) visa to study a Bachelor of Business (Professional) at Swinburne University of Technology. My Student (subclass 500) visa was valid until 30 August 2020.

12.I began my studies at Swinburne as scheduled on 23 February 2017.

13.My sister Wendy came to Australia for her high school studies in April 2018 and we lived with our aunt Maria Joana Lay. On 2 January 2019, my sisters Whitney Lay and Windia Lay were granted Student (subclass 500) visas to continue their, schooling in Australia and my mum, Merita Ribeiro Lu, was granted a Student (subclass 590) visa to support them in Australia. On 26 February 2020, Wendy was granted a Student (subclass 500) visa to study at university in Australia. I currently live with my sisters and my mother in Australia.

14.In early 2020, the COVID-19 pandemic began to spread in Australia and Melbourne entered its first full lockdown in March 2020. The border was closed in April 2020.

15.The rules of the COVID-19 lockdown required me to stay at home and only go out for certain essential reasons. Because of this it was very hard to get the work placements which are a required part of the Bachelor of Business (Professional) that I was enrolled in at the time. Our course coordinators said that it would be hard in this environment to find an appropriate work experience and it might just be better for me to finish my degree without the work experience.

16.In order to be able to complete my degree in the shortest possible time, I decided to change from a Bachelor of Business (Professional) to a Bachelor of Business with a major in Information Systems. I was able to transfer a number of units from my previous studies to this degree. However, I still needed to complete a few more units to satisfy the degree requirements. Because of this unanticipated state of affairs, I was not able to complete my studies before the expiry of my Student (subclass 500) visa and needed to apply for a further Student (subclass 500) visa.

17.I began to draft an application for a further Student (subclass 500) visa to lodge before my Student (subclass 500) visa ceased and drafted a short Genuine Temporary Entrant Statement which explained why I needed to lodge a further application.

18.On 8 July 2020, Melbourne entered its 111-day lockdown in response to the COVID-19 pandemic. This was a very distressing time for me and my family. Apart from not allowing me to complete my planned work experience placement at Swinburne, all of my in-person classes were paused and converted to online classes. My family was very worried about returning home and we also wanted to be able to continue our studies in Australia. It was difficult making it through the lockdown but we were very lucky to all be together.

19.The lockdown strongly affected us all emotionally. I was very anxious about what would happen. Every day I would see the news about the case numbers and worry what they would mean and if we would ever be able to leave the lockdown.

20.If I think back now to the mental state that I was in, I think that I was very anxious that my Student (subclass 500) visa would not get approved because I had changed my degree from Bachelor of Business (Professional) to Bachelor of Business and this had made my studies longer than they were supposed to be. Thinking about this visa application and the possibility that it would be refused made me so anxious, so I avoided thinking about it or doing anything. I know that this was not a rational or helpful way to deal with my situation, but I was in a particular period of stress and anxiety with the pandemic and the lockdowns as well as worrying about my visa being refused.

21.Since I was avoiding thinking about my Student (subclass 500) visa application, in time, with everything going on, I honestly forgot about it. I am embarrassed that I was so careless with my visa and that my anxiety about having my visa application refused has made things so much more difficult.

22.On 11 March 2021 (after the lockdowns had lifted) I completed a VEVO check on the Department's website which notified me that my Student (subclass 500) visa had ceased on 30 August 2020. Shortly after this I sought advice and engaged lawyers at Clothier Anderson Immigration Lawyers to lodge a visa application so that I would no longer be an unlawful non-citizen in Australia.

23.On 25 March 2021, I lodged an application for a Confirmatory (Residence) (subclass 808) visa, which was simultaneously an application for an associated bridging C visa.

24.My application was refused on 31 March 2021. On 21 April 2021, I sought review in the Tribunal.

25.I completed my course work for my Bachelor of Business (Information Systems) and was awarded my degree on 12 July 2021. My major in Information Systems means that I have both a strong understanding of business principles and information systems. I want to get a job in business analytics.

26.I have not worked since I graduated as I did not have permission to work on my bridging C visa. Instead, I have helped out with whatever has needed to be done around the house. However, I am intending to apply for permission to work soon as it's been difficult for my mum to support me of late.

27.I am very close with my mum and all my sisters. My sister Whitney is currently studying Business at Swinburne University and my other sister Wendy is studying a Bachelor of Architecture at Monash University. Whindia is only 16 and is still completing her high school studies. I have helped out my sisters by dropping them off and picking them up from school.

28.I am also very close with my aunt, Angelina Ku, who is my dad's sister and is an Australian citizen, as well as with her children who are also Australian citizens. Even though they are my cousins, our relationship is very close and we see each other like siblings. I see my aunt every fortnight, and we have family gatherings with her around every second month.

29.I hope that the Tribunal will consider my circumstances and recommend my case to the Minister so that I have the chance to work or study further on a Temporary Graduate (subclass 485) visa and, thereafter, apply for a skilled or employer sponsored visa if available to me.

CONSIDERATION OF CLAIMS AND EVIDENCE

Application under review

1. The issue in the present case is whether the applicant satisfies cls 808.211 and 808.212 or cl 808.213, as required by cl 808.211A, which must be satisfied at the time that the visa application is made.

2. As noted above, the applicant concedes that he does not meet the criteria for the grant of the Confirmatory (Residence) Subclass 808 visa and has sought review by the Tribunal in order to seek the Minister’s intervention pursuant to s 351 of the Act.

3. The applicant did not hold any visa on 25 March 2021 when he lodged the application currently under review.[10] Accordingly, the applicant cannot satisfy cl 808.211, 808.212 or 808.213. In addition to other requirements, cl 808.211 requires the applicant to hold a Resident Return (Temporary) (Class TP) visa or an Emergency (Temporary) (Class TI) visa at the time of application. The applicant’s application is not covered by paragraph 1111(2A)(b), (c) or (d) of Schedule 1 to the Regulations, and so cl 808.213 does not apply. Accordingly, the Tribunal is satisfied that the applicant does not satisfy cl 808.211A, and so does not satisfy the criteria in cl 808.21, which are primary criteria for the grant of the visa.

   [10]   Movement records of the applicant dated 12 May 2023, AAT file No 2105073 Doc ID: 11052466.

4. Therefore, the Department’s decision must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

REQUEST FOR MINISTERIAL INTERVENTION

Referral for Ministerial Intervention

1. The Tribunal now considers the applicant’s request for the Tribunal to refer the matter to the Department for consideration by the Minister to exercise his discretion to substitute the Tribunal’s decision for one that is more favourable to the applicant, pursuant to s 351 of the Act. That section reads, relevantly:

   Section 351 Minister may substitute more favourable decision

   (1)   If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

2. The Migration Policy and Operational Contents (formerly known as PAM3) sets out the Minister’s guidelines for the exercise of this intervention power. These guidelines state that:[11]

   A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

   [11]    Migration Policy and Operational Contents, All stacks > 01/07/2023 > POLICY > MIGRATION ACT > Ministerial powers instructions > Minister's guidelines on ministerial powers (s351, s417 and s501J).

3. The guidelines set out instructions for Departmental officers regarding the cases that should be brought to the Minister’s attention. The Tribunal notes that the recent High Court decision of Davis v MICMSMA[12] held that all requests for Ministerial intervention must be considered by the Minister personally, and that, contrary to the terms of the policy, the Department may not finalise cases without referring them to the Minister. Notwithstanding, the Tribunal may still consider whether an applicant’s circumstances meet those set out within the policy and refer their case for Ministerial consideration. Importantly, whether the Tribunal does so, an applicant is still entitled to seek Ministerial intervention themselves.

   [12]   Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10.

4. The policy describes the ‘unique and exceptional circumstances’ in which the Minister may wish to exercise his power to intervene in the public interest, and ‘other relevant information’ related to that power. Relevantly to the applicant, these circumstances and information include:

   4. Unique or exceptional circumstances

   Cases that have one or more unique or exceptional circumstances, such as those describe below, may be referred to me for possible consideration of the use of my intervention powers:

   ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

   …

   ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

   ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case 

   5. Other relevant information

   ·For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:

   ·circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

   …

1. The Tribunal has considered the relevant documentation provided by the applicant including the applicant’s declaration and the submissions made on his behalf by his representative. Based on the applicant’s evidence, the Tribunal accepts the applicant’s evidence that he was studying Bachelor of Business (Professional) at Swinburne University of Technology and switched to Bachelor of Business with a major in Information Systems. The switch in course meant a change to the applicant’s credit requirements resulting in the applicant needing an additional half a year to be able to complete his remaining subject credit for the purposes of earning his degree. As a result, the applicant was not able to complete his studies before the expiry of his student visa. 

2. The Tribunal accepts that applicant’s evidence that because of the lockdowns associated with the COVID-19 pandemic, the applicant’s in-person classes were converted to online classes, and he was not able to complete his planned work experience placement, as claimed. The Tribunal notes that during the COVID-19 pandemic, the severity of the lockdowns and the extensive period over which they were enforced had a strong, detrimental effect on the community. Accordingly, the Tribunal accepts that the lockdown caused the applicant emotional stress and anxiety as claimed. As such the Tribunal accepts that the Covid-19 pandemic and the associated lockdowns have prevented the applicant for acting in his own interest in making a prompt application to extend his student visa for the legitimate reason of completing his degree. 

3. Therefore, based on the applicant’s evidence, the Tribunal is satisfied that the application of relevant legislation in this case has led to an unfair and unreasonable result. Accordingly, the Tribunal recommends that the Minister consider the exercise of discretion pursuant to s 351 of the Act on the basis that the application of relevant legislation in this case does lead to an unfair or unreasonable result.

Jason Pennell
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994

808.21 Criteria to be satisfied at time of application

808.211A
The applicant satisfies:
(a) clauses 808.211 and 808.212; or
(b) clause 808.213 (which applies to some former holders of Norfolk Island immigration
permits).

808.211
The applicant:
(a) is the holder of a Resident Return (Temporary) (Class TP) visa and satisfies the Minister
that he or she would have satisfied the criteria for the grant of a Return (Residence) (Class
BB) visa at the time he or she was granted the Resident Return (Temporary) (Class TP) visa;
or
(b) is a person who is the holder of an Emergency (Temporary) (Class TI) visa and:

(i) either:

(A) satisfies the remaining criteria, within the meaning of Part 302; or

(B) is unable to satisfy those criteria, but is able to substantiate a claim to be an Australian permanent resident; or

(ii) is a member of the family unit of a person who:

(A) is the holder of a Subclass 302 (Emergency (Permanent Visa Applicant)) visa; and

(B) has satisfied the primary criteria; or

(c) is the holder of a Border (Temporary) (Class TA) visa and satisfies the Minister that he
or she would have satisfied the criteria for the grant of a Return (Residence) (Class BB) visa
when he or she was granted the Border (Temporary) (Class TA) visa; or
(d) is the holder of a Class 301 (Australian requirement) entry permit or visa granted under
the Migration (1993) Regulations and has satisfied the criteria referred to in paragraph
301.321(b) of Schedule 2 of those Regulations.

808.212
In the case of an applicant who is the holder of a Subclass 302 visa, all members of the
family unit of the applicant satisfy the public interest criteria applicable to them.

808.213
(1) This clause applies if paragraph 1111(2A)(b), (c) or (d) of Schedule 1 covers the
application.
(2) The application must be made before 1 January 2024, unless the Minister is satisfied
that there are compelling reasons for granting the visa.
(3) During a period of, or periods that total, not less than 5 years in the period of 7 years
immediately before the application is made (including any period, or part of a period, before
30 June 2016), the applicant meets the requirements of subclause (4).
(4) The applicant meets the requirements of this subclause during any period or periods
while:

(a) the applicant is (or has been) lawfully present in Norfolk Island; or

(b) the applicant is (or has been) lawfully present in a place elsewhere in Australia, and:

(i) has not turned 25; and

(ii) is a dependent child of a person who is ordinarily resident in Norfolk Island; and

(iii) lives (or has lived) in that place for the purpose of study; and

(iv) while living there, meets (or met) the requirements mentioned in condition 8105 (which relates to students engaging in work).